I am not acquainted with Prof. Birks' definition; but, on their plain, meaning I believe your proposition to have the support of Co. Litt. 345b, in the statement, "But legally this word (Title) includeth a right also, as you shall perceive in many places in Littleton: and title is the more generall word; for every right is a title Titulus est justa causa possidendi quod nostrum est".*

________

*Title is the lawful cause of possessing what is ours. In my submission, this embodies the distinction between "title" and "property", which Chalmers implicitly drew in the Sale of Goods Act 1893 and which (rather than any of the reasoning in the House of Lords or the Court of Appeal) is the true explanation of the decision in National Employers Insurance v. Jones [1990] 1 A.C. 24.

-----Original Message-----
From: Tang Hang Wu
Date: 17 July 2000 10:38
Subject: RDG: RE: Questions re "Equity, Conscience, and UE"

Taxonomy

On a fundamental level, I have no objections to an adoption of a loose taxonomy for the sake of convenience. However, I do take issue when such a taxonomy is elevated into a categorical truth (see P Birks "Property and Unjust Enrichment: Categorical Truths" [1997] NZLRev 623). I think it's unhealthy when any dissent from Birks' taxonomical model is automatically seen as a heresy and a categorical error (see W Swadling "What Is The Law of Restitution About? Four Categorical Errors" in WR Cornish (ed.), Restitution Past Present and Future (Hart Publishing, 1998).

Further, Birks makes many references to Darwin on the importance of taxonomy. Birks' classification is essentially derived from Roman Law. However, the equation between Gaius and Darwin has been challenged by Prof Geoffrey Samuel in 49 ICLQ 297 "Can Gaius really be compared to Darwin". I find Prof Samuel's thesis compelling i.e. that the crucial difference between a legal classification and a zoological classification is that the former is incapable of being verified empirically while the latter is capable of being verified. Thus, Birks' assertion that "a sound taxonomy" is an antidote to precision and clarity is an unproven assertion. More importantly, as any legal taxonomy is incapable of being verified empirically, it would therefore be possible to argue that Birks' taxonomical structure is subjective in nature.

With respect, it is my opinion that it is not prudent to import a term such as taxonomy with a highly specialized meaning from another discipline without considering the implications as such. The main criticism of adopting such a taxonomy is (as pointed out by Prof JD Davies) that it promotes artificiality. This argument will be developed below vis-a-vis characterisation of an equitable interest.

 

Birks' characterisation of an equitable interest

In Birks' world, all equitable interests are inert. So even if a person can point to a particular property and say "That thing is mine!" in equity, that person's equitable interest is inert. According to Birks', equity's vindicatio is given teeth by the recognition of a subsidiary obligation to restore the res. This subsidiary obligation to restore the res is categorised among "various other events".

It is my contention that such a manner of characterisation does not give the notion of an equitable interest enough credit. Grantham & Rickett in "Property and Unjust Enrichment: Categorical Truths or Unnecessary Complexity" [1997] NZLRev 668 have pointed out such a manner of characterisation renders property impotent. Virgo has also in numerous articles and in his new book "Principles of the Law of Restitution" taken a similar position. To say that equity's vindicatio is inert is to sub-consciously place the law of obligations ahead over an equitable proprietary interest.

Further, I would also argue that to have a category known as "others" or "various other events" as a causative factor is not saying very much. How does having a catch all category known as "others" or "various other events" promote clarity in thinking?

Finally, the recent House of Lords case in Foskett v. McKeown [2000] 2 WLR 1299 poses a serious challenge to Birks' taxonomical structure. To recap the facts, a rogue trustee took monies from certain beneficiaries and used part of the monies to service an insurance policy. The rogue trustee committed suicide later and not surprisingly the beneficiaries claimed for a proportionate share of the proceeds of the policy. The House in a decision that split the Law Lords 3-2 ruled that the beneficiaries was so entitled. However, what was extremely interesting in that case was that 4 of the Law Lords (Lord Browne-Wilkinson, Lord Millet, Lord Hoffman and Lord Hope of Craighead) emphatically said that this claim was based on the vindication of the purchasers' equitable interest and not a claim based on unjust enrichment. Thus, it is my contention that this decision proves what Grantham, Ricketts and Virgo has been arguing all along: that at the very least a pre-existing equitable interest is a causative factor. I think Chambers is absolutely correct when he says that causative events such as wrongdoing may generate property rights. Thus, in most cases property rights is a response as defined by Birks. However, at the same time it must be recognised that a pre-existing equitable interest may also act as causative factor as demonstrated by Foskett v. McKeown. To consign this into a category known as "others" does not do a pre-existing equitable interest justice. Further, the confusion that reigned in the House in Foskett v. McKeown on whether this was a claim in unjust enrichment or a vindication of an equitable interest shows that perhaps it is better to recognise a pre-existing equitable interest as a causative factor alongside "consents", "wrongs", "unjust enrichment" and "others"

 

Tang Hang Wu
National University of Singapore
Faculty of Law